Uber is facing yet another challenge in the employment tribunal in the ongoing saga about pay and conditions. Hannah Ford explains what the latest case entails.
One of the claimants in the original employment rights case against Uber is back in the courts again – this time challenging how it calculates drivers’ pay.
The case raises interesting questions for gig economy employers, such as whether a driver should be considered “working” when logged into multiple ride-hailing apps simultaneously and who they are working for.
It also draws attention to the challenges employers face in correctly calculating holiday pay for those with irregular hours, in the wake of the Supreme Court’s judgment in Harpur v Brazel.
The case shows that, unless statutory rights are calculated and applied lawfully by employers, workers can still be denied valuable employment protections.
Why is Uber back before the tribunal?
James Farrar, general secretary of the App Drivers and Couriers Union, was one of the original claimants in the Supreme Court case against Uber, but has reportedly declined offers of settlement from Uber following the judgment.
He seeks a public declaration from an employment tribunal that sets out how Uber should define working time for the purposes of calculating entitlement to NMW and paid holiday.
Back in 2021, the Supreme Court confirmed in a landmark case that Uber drivers were workers within the meaning of UK employment legislation. This entitles Uber’s drivers to valuable employment rights, including the right to receive the national minimum wage (NMW) and the right to paid annual leave.
The Supreme Court was unanimous in its finding that Uber drivers are to be treated as “working” from the moment they log into the Uber app within the territory in which they are licensed to operate and ready and willing to accept trips.
Uber has always maintained that it is unsustainable to pay their drivers for simply being logged into the app, especially given they have a right to reject work and can simultaneously be logged into and available to work for other ride-hailing apps.
Despite the Supreme Court’s judgment, Uber reportedly continues to pay its drivers only from the time they pick up a passenger until that passenger gets out of the vehicle, according to Farrar’s case. It also reportedly calculates and pay holiday pay on a weekly basis, by multiplying earnings by 12.07%.
Uber has always maintained that it is unsustainable to pay their drivers for simply being logged into the app, especially given they have a right to reject work and can simultaneously be logged into and available to work for other ride-hailing apps.”
When is a driver working?
There are similar methods of calculating working time for NMW and holiday entitlement purposes. Under NMW legislation, a worker who is not doing actual work is to be treated as working if they are available for work, and required to be available, at or near their workplace. Under the Working Time Regulations 1998, working time is defined as any period during which the worker is working, at their employer’s disposal, and carrying out their duties.
The critical question in this case is whether a driver can be treated as working for Uber under both these tests when also logged into another ride-hailing app and, arguably, meeting the relevant test for working for that app too.
Uber’s position is that a driver cannot reasonably be said to be working for and at the disposal of Uber if they are logged onto another app provided by a competitor operating a similar service.
Can a driver work for different employers simultaneously?
When the original claim was brought in 2016, no evidence was put before the tribunal of the existence of other ride-hailing apps operating in competition with Uber. The Supreme Court, therefore, declined to consider this issue in the abstract. We expect, however, that Uber will present evidence of competitors’ market share and statistics showing the likelihood of an Uber driver being simultaneously logged into other ride-hailing apps.
The tribunal will be required to consider whether it is possible to be treated as working simultaneously for more than one employer. If the ruling goes in the worker’s favour, the tribunal will also need to determine how NMW and holiday entitlement should be calculated in such circumstances, to avoid a windfall for the drivers which could potentially put many ride-hailing apps out of business.
How should holiday pay be calculated for gig economy workers?
The case also raises the interesting question about how employers should be calculating holiday pay in the wake of the landmark Supreme Court judgment in Harpur v Brazel, which effectively ruled that applying a multiplier of 12.07% was an unlawful method of calculating holiday pay.
However, the government has subsequently opened a consultation about whether to reinstate the 12.07% multiplier, recognising that “rolling up” holiday pay in this manner is widely used in the gig economy as a simple way to calculate holiday pay for workers on irregular hours. The consultation closes on 7 July 2023, so it is unlikely there will be a substantive change in this area before the employment tribunal judgment is published.
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It will be interesting to see how Farrar’s latest case plays out, and what impact it might have on workers’ rights in the gig economy.
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